State ex rel. O.F.

742 A.2d 971, 327 N.J. Super. 102, 1999 N.J. Super. LEXIS 430
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 23, 1999
StatusPublished
Cited by2 cases

This text of 742 A.2d 971 (State ex rel. O.F.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. O.F., 742 A.2d 971, 327 N.J. Super. 102, 1999 N.J. Super. LEXIS 430 (N.J. Ct. App. 1999).

Opinion

The opinion of the court was delivered by

COBURN, J.A.D.

This appeal from a judgment of delinquency concerns a boy, O.F., who was twelve years old when the acts of delinquency were allegedly committed and thirteen when he confessed to some of them in the prosecutor’s office.

O.F. and his accomplices, M.C. and D.A., were tried together for various offenses arising from a fire that destroyed a building known as National Wholesale Liquidators warehouse in Lodi on April 17, 1997. O.F. was adjudged a juvenile delinquent based on his commission of acts which if committed by an adult would be third-degree arson, N.J.S.A. 2C:17-lb(l); third-degree arson, N.J.S.A. 2C:17-lb(2); third-degree causing widespread damage, N.J.S.A 2C:17-2b; and fourth-degree criminal mischief, N.J.S.A 2C:17-3 (the first set of offenses). M.C. and D.A., with whom we are not concerned, were also adjudged delinquents for conduct prohibited by those statutes. In addition, for later conduct relating to attempts to avoid detection, O.F. was found to have committed acts which if done by an adult would be simple assault, N.J.S.A. 2C:12-la(3); second-degree witness tampering, N.J.S.A 2C:28-5a; and fourth-degree hindering apprehension, N.J.S.A 2C:29-3 (the second set of offenses).

O.F.’s adjudications for the first set of offenses depended almost entirely on the admissibility of unrecorded statements he made during an initial interrogation in the prosecutor’s office without [105]*105the benefit of Miranda1 warnings and without the presence of the boy’s mother, whom the prosecutor’s investigator had persuaded to remain locked outside the interrogation room. Immediately thereafter, O.F. was asked to summarize his admissions in his mother’s presence, which he did. Then he and his mother were given Miranda warnings, and O.F. reiterated his admissions in a recorded statement.

The trial judge concluded that Miranda was inapplicable to the first interview because the boy was not then in custody. He also determined that the admissions were voluntary despite the mother’s exclusion from the interrogation room. Based on those conclusions and his further determination that the recorded statement was voluntary and taken in accord with Miranda, the results of both interviews were received in evidence. We disagree. Since we are satisfied that the boy was subjected to custodial interrogation during the first interview, the violation of Miranda requires suppression of the confession. We further conclude, apart from Miranda, that in the circumstances of this case the confessions were involuntary. Those conclusions necessitate reversal of the first set of adjudications and retrial. With one exception, simple assault, the judge also based his adjudications on the second set of offenses in critical part on the confessions. Therefore, except for the adjudication of simple assault, which is not challenged by O.F., these adjudications also must be reversed and remanded for trial.

I

We turn to O.F.’s primary contention, that the trial judge erred in admitting his confessions, mindful that “our review of the record must be ‘wide and penetrating’ to assure that the fundamental fairness requirement of due process is met.” State v. Cook, 47 N.J. 402, 416, 221 A.2d 212 (1966) (citation omitted). The evidence on this issue was produced at a hearing on O.F.’s suppression motion.

[106]*106Sergeant Adrian Cales, an investigator assigned to the Bergen County Prosecutor’s arson squad, began his investigation of the fire shortly after it occurred on April 17, 1997. The fire had completely destroyed the building, which housed numerous retail concessionaires in a space of 132,000 square feet. At the time of the fire, there were over 30 employees and over 100 customers in the building. From his initial investigation, Cales concluded that the fire, which was discovered by employees shortly after it had begun, had started around 7:50 p.m. in the vicinity of Aisle 3, where cardboard boxes had been stored in shelves, and that it was “incendiary in nature.” Among the products offered for sale were butane lighters and aerosol cans. Cales opined that someone had intentionally combined those materials to set the fire. He explained that someone using them must maintain the proper distance between the two or the aerosol spray will extinguish the lighter’s flame.

The police were unable to identify any suspects for six months until, on October 16, Peter Marchetto called the Maywood Police Department and told Detective Sergeant Joseph Sacco that his son might have information about the fire. Marchetto agreed to bring his son to the police station for questioning. Sacco testified that the boy told him that he had overheard O.F. telling D.A. to tell M.C. how D.A. started the fire. At the time, Sacco believed that Prosecutor’s Investigator Annette Orzetti was in charge of the investigation. He called her and she soon arrived at the police station. An hour-long interview ensued, during which Orzetti took notes. According to her report, based on her notes, which she later destroyed, Marehetto’s son said that on the day after the fire he heard O.F. and D.A. telling M.C. how they started the fire with hair spray and a cigarette lighter in the automobile or hair care aisle.

The next day, October 17, Orzetti met with her superior, Lieutenant Winters, who told her to give the information she had learned from Marchetto’s son to Sergeant Cales. According to [107]*107Orzetti, Cales asked for her notes, which she tore from her notebook. He later returned them to her.

The testimony of Sergeant Cales respecting the information he received on October 17 conflicted with that given by both Sacco and Orzetti in a number of respects. According to Cales, Orzetti was in the room but remained silent while he spoke to Lieutenant Winters, who advised him that “two juveniles possibly possessed information concerning the role and participation of a third juvenile in setting the fire.” He said that Winters identified the possible witnesses as M.C. and O.F. However, in his report, Cales wrote, “Information and details had been provided by Det. Sgt. Sacco which indicated that [O.F.] might have had information regarding the fire.” But Sacco, who arrived at the prosecutor’s office after Cales had met with Winters and Orzetti, testified that he did not relate any information to Cales about the October 16 interview. Also, Cales said that Orzetti had advised him that “Sacco had taken notes of the [October 16] interview and that he had more information.” But both Sacco and Orzetti testified that Orzetti was the only one to take notes of that interview.

Cales admitted on cross-examination that during the October 17 meeting he believed that Winters told him that D.A. had mentioned using hair spray and a cigarette lighter and that the fire started somewhere in the automobile or hair care aisle. As already noted, that information appeared in the report filed by Orzetti, which was based on the interview notes that she said she gave to Cales.

Implicit in the trial judge’s findings of fact is the conclusion that Cales decided to interview O.F. without having determined that he was a suspect. Given the conflicting testimony described above and the nature of Cales’s ensuing interrogation of O.F., that finding is questionable, to say the least.

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Bluebook (online)
742 A.2d 971, 327 N.J. Super. 102, 1999 N.J. Super. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-of-njsuperctappdiv-1999.